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Texts Cited: Explanatory Statement, Evidence (Miscellaneous Provisions) Bill 2003 (ACT) J.C. Smith and Brian Hogan, Criminal Law (LexisNexis UK, 10th ed, 2002)

Parties: MZ (Appellant) The Queen (Respondent)

Representation: Counsel S Odgers SC (Appellant) S Drumgold SC (Respondent)

File Number: ACTCA 51 of 2019

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 3 December 2019 Case Title: Kirby v MZ Citation: [2019] ACTSC 327 Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 6 December 2019 Case Title: R v MZ Citation: [2019] ACTSC 341

THE COURT:

Introduction

1. Following a trial before Mossop J (the trial judge) and a jury, on 14 October 2019, the appellant was convicted of the offence that, on 17 August 2018, he engaged in sexual intercourse with the complainant without her consent and was reckless as to whether she consented.

2. The appellant seeks leave to appeal from the finding of guilt on the grounds that:

(a) The trial judge erred in the directions that were given under s 80D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act) regarding belief as to consent; and

(b) Inadequate directions were given concerning the appellant’s failure to give evidence. Prosecution case at trial

3. At the trial, the prosecution case was that, in August 2018, the appellant and the complainant were married but living separately in the same home. On 16 August 2018, the appellant attended an appointment with his lawyer regarding the couple’s divorce. Upon returning home, he told the complainant that he would not divorce her.

4. Between 10 PM on 16 August 2018 and the early hours of 17 August 2018, the appellant entered the bedroom occupied by the complainant and her young daughter on several occasions and was told to leave. On one occasion, when the appellant raised the issue of the divorce, the complainant told him that if he did not leave, she would call the police.

5. Following one attendance of the appellant in the complainant’s bedroom, the complainant began a recording on her mobile telephone, which captured the subsequent incidents.

6. In the early hours of 17 August 2018, the complainant awoke to find that her clothes had been removed and she was naked. The appellant was engaging in penile/vaginal intercourse with her. She pushed him from her and told him to stop and to go away. Within about five seconds of her waking up and making it clear that she did not consent to sexual intercourse, the appellant desisted.

7. The complainant attempted to go back to sleep. However, after about 10 minutes, the appellant returned to the bedroom and used his finger to place a bitter substance into her mouth. The complainant made an immediate complaint to her mother, who called the police.

Defence case at trial

8. When interviewed by the police, the appellant said that, at some stage prior to the intercourse, he had accused the complainant of having “ice” in a bag and she had offered sexual intercourse in response. He told them that she had been awake at the time and had indicated to him that she wanted to engage in sexual intercourse, during the intercourse she had appeared to enjoy it, and, when she made it clear that she wanted the intercourse to stop, he had desisted.

9. In closing argument, Mr Boucaut QC (counsel for the appellant) referred to the police interview, saying:

His answers effectively to these allegations are that she was the one that initiated the sexual contact. She requested it, and a lot has been said about that so far. She requested sex, so he put his penis into her vagina. His version was to the effect that he thought she was enjoying it and then all of a sudden she says “get off”, she pushes him and he stops and it is all over very, very quickly indeed… The issue obviously is one of consent.

Application for leave under r 5531 Court Procedures Rules

10. Relevantly, r 5531 of the Court Procedures Rules 2006 (ACT) (CPRs) provides:

5331 Appeals to Court of Appeal—grounds of appeal against conviction or sentence Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing: (a) a direction given by the trial judge; (b) the trial judge’s failure to give a direction; (c) the trial judge’s decision about the admission or rejection of evidence. (note omitted)

11. At the trial, Mr Boucaut QC took no objection to the directions that are the subject of the grounds of the appeal.

12. On the appeal, Mr Boucaut QC deposed to the fact that, when the direction concerning mistaken belief as to consent was given, he “overlooked” the fact that it did not accord with s 80D of the Miscellaneous Provisions Act and, therefore, sought no redirection. Had he realised that the direction was incorrect, he would have sought a redirection. Having regard to the exchange that occurred between the trial judge and counsel prior to the trial judge’s summing up, we take this to mean that defence counsel now realises that, at the time of the trial, he misinterpreted s 80D.

13. In relation to this ground, the appellant submitted that leave should be given because the ground concerns a direction regarding the elements of the offence, there was no good forensic reason that the appellant’s counsel had failed to seek redirection, and the misdirection may have resulted in a miscarriage of justice.

14. As to the second proposed ground of appeal, Mr Boucaut QC stated that, at the time of the trial, he had overlooked the fact that the trial judge had not warned the jury against using the appellant’s failure to give evidence against him. He had been concerned that the trial judge’s direction had the effect of discounting the appellant’s account to the police during his interview because it was not on oath, but had made a tactical decision that he would not seek a redirection on that matter. Had he realised that the trial judge had failed to direct the jury that it could not use the appellant’s failure to give evidence against him, he would have sought the direction.

15. The appellant submitted that leave should be granted in relation to the second proposed ground because it concerns the exercise of the appellant’s fundamental right to silence: see Strbak v The Queen [2020] HCA 10; 94 ALJR 374 at [31]; Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 at [55], [62]. While relevant, the reasons why counsel did not seek redirection were not conclusive as to whether leave should be granted.

16. This Court takes a strict approach to r 5531: see BI v The Queen (No 2) [2018] ACTCA 11 at [110]–[112], Munro v The Queen [2014] ACTCA 11 (Munro) at [128]–[130] and UQ v The Queen [2019] ACTCA 23; 14 ACTLR 172 at [7].

17. The purpose of r 5531 is to prevent what is sometimes referred to as an “armchair appeal”, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted”: Munro at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15]; see also Marsh v The Queen [2018] ACTCA 55 at [170]–[172].

18. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, McHugh J made the following observations concerning the equivalent rule in New South Wales (at [72]):

There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.

19. In Munro, Burns J (with whom Refshauge ACJ and Penfold J agreed) made essentially the same point in relation to r 5531 (at [130]):

In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

20. Despite the fact that, at trial, the appellant’s counsel failed to identify neither of the alleged errors, we consider that leave should be granted in relation to both proposed grounds as an error in either respect may have supported the conviction, i.e. may have resulted in a miscarriage of justice.

Ground 1: Recklessness as to consent

21. Section 80D of the Miscellaneous Provisions Act says:

In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances. (emphasis added)

22. Before the trial judge directed the jury, there was an exchange between the judge and counsel concerning s 80D. The judge said that he would give the direction required by the provision although its meaning was not entirely clear. The following exchange occurred:

Trial judge: Just to be clear Mr Boucaut, are you content if I put it on the basis that it is for the jury to decide whether there is a reasonable possibility that the mistaken belief was reasonable which implies that in order for the defence to be made out, the belief has to be a reasonable one? … Mr Boucaut: If it’s a mistaken belief which, in the circumstances, is a reasonable one and the Crown have not disproved… that beyond a reasonable doubt then it’s game over. The Crown wouldn’t have discharged its onus. Trial judge: … But if it’s a mistaken belief which is unreasonable in the circumstances in the jury does not need to – then that is no barrier to a conviction? Mr Boucaut: If they are satisfied beyond a reasonable doubt that there is no reasonable basis for that belief, then that would be in the Crown’s favour.

23. In this exchange, Mr Boucaut QC appeared to concede that his client could be convicted if he had mistakenly believed that the complainant was consenting if his subjective belief was, objectively, unreasonable. That is the way in which the trial judge understood the concession. It may be that Mr Boucaut QC meant to convey that, if the jury found that the appellant’s belief was objectively unreasonable, that was an evidentiary matter “in the Crown’s favour” because the jury would be less likely to accept that the appellant genuinely held a belief that was an objectively unreasonable belief; if so, Mr Boucaut’s statement was poorly expressed.

24. The trial judge correctly directed the jury that recklessness could be established by the prosecution in one of three ways:

(a) if the accused actually knew that the complainant did not consent (she had no opportunity because she was asleep);

(b) if the appellant realised that there was a possibility that the complainant did not consent and went ahead anyway; and

(c) if the appellant did not even consider the issue of consent and did not care whether complainant consented.

The prosecution was obliged to prove beyond reasonable doubt that the appellant had one of these states of mind when he engaged in sexual intercourse with the complainant.

25. His Honour then continued in a manner that was consistent with the earlier discussion at [22] above:

If you are to reach any one of those conclusions beyond reasonable doubt, then you must exclude beyond reasonable doubt the possibility that the accused’s state of mind might have been that he genuinely though wrongly believed that the complainant was consenting to the sexual act. In order for it to be relevant, any such belief must be a reasonable one in the circumstances. If he genuinely but wrongly believed that the complainant was consenting, then the Crown will not have established any one of those three states of mind, namely actual knowledge, knowledge of the possibility of the absence of consent or just indifference and continuing anyway. That is because if he genuinely but mistakenly believed she was consenting, that would be inconsistent with proof beyond reasonable doubt that he recognised the possibility that she was not consenting. Similarly, it would be inconsistent with proof beyond reasonable doubt that he recognised the possibility that she was not consenting and it would be inconsistent with proof beyond reasonable doubt that he did not consider the issue and went ahead anyway. (emphasis added)

26. Later, the trial judge repeated the three possible ways in which the prosecution may establish recklessness and then said:

The ultimate issue is whether, because of satisfaction of any one of those ways of proving recklessness, you are satisfied that the accused was reckless.

27. The trial judge then summarised the appellant’s position: that there had been a non-verbal indication of consent, the appellant reasonably believed that the complainant had consented, and the jury could not exclude the possibility that the appellant had a reasonable belief that the complainant consented.

28. The trial judge’s direction would have conveyed to the jury that the prosecution merely had to negative the possibility of an objectively reasonable belief that the complainant was consenting to the sexual act; if the appellant may have genuinely (but objectively unreasonably) believed that the complainant was consenting, then he should be convicted.

29. That is not the position. A genuine belief on the part of the appellant that the complainant was consenting to the act of sexual intercourse is inconsistent with each of the requisite states of mind to which the trial judge referred. Section 80D only operates to permit a jury to take into account “whether the belief was reasonable in the circumstances” as one consideration informing whether the Crown has proven that the appellant did not genuinely believe that there was consent. A jury should not proceed on the basis that the test is what a reasonable person would have known or believed in the circumstances: R v Lopez-Alonso (1996) 86 A Crim R 270 per Gleeson CJ at 273; Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 219–220.

30. The appellant’s case was that the complainant was awake when he engaged in sexual intercourse with her. Alternatively, the appellant submitted that, if the jury did accept the complainant’s account that she had been asleep (and thus did not consent to sexual intercourse), they would need to consider the possibility that the appellant believed that she was awake and was consenting.

31. Cases in which it is alleged that an accused commenced sexual intercourse while a complainant was asleep may raise special difficulties. A statement by a complainant that she or he “woke up” to find an accused engaging in sexual intercourse with her or him will often simply mean that the complainant has no conscious memory of events that occurred prior to them “waking up”. It should not be assumed that consciousness is binary, and one is either fully conscious or completely unconscious. A jury trial is not the venue for a seminar on the philosophy of mind, but it is not beyond the understanding of jurors that, in the process of awakening from sleep, a person may display some signs of consciousness, yet have no subsequent recollection of their actions. Of course, the “higher” the functions allegedly demonstrated by the complainant (e.g. rational speech, complex movements) the less likely it will be that a jury will accept that the complainant was in such a state.

32. The respondent submitted that it had been unnecessary for the trial judge to give a direction under s 80D as the matter was not a “relevant case” within the meaning of s 80D.

33. The respondent submitted that “relevant case” should be understood to refer to the real facts in issue in the trial. Further, it was not engaged unless an accused called evidence or made an assertion that he had acted under a mistaken belief about consent. In this case, no evidence was led and no assertion was made raising the possibility that the appellant had held a mistaken belief in consent.

34. The respondent relied upon R v Getachew [2012] HCA 10; 248 CLR 22, a case in which the complainant gave evidence that she had been asleep and had awoken to find someone engaging in sexual intercourse with her. The accused called no evidence at the trial but disputed that there had been an act of sexual intercourse. A Victorian provision required a direction to be given “if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act”. The Victorian Court of Appeal considered that the question of the accused’s belief in consent had been raised but the High Court disagreed, observing that at no time had the accused asserted that he thought or believed that the complainant was consenting.

35. Similarly, in Gul v The Queen [2017] VSCA 153 and KB v The Queen [2013] VSCA 137, the Court of Appeal held that the way in which the accused had defended the allegation (belief in consent was not a fact in issue in the trial) meant that the provision had not been engaged.

36. These cases are of limited relevance because the Victorian legislation that was considered was substantially different to the legislation in this jurisdiction; the Victorian legislation was not engaged unless the accused gave evidence or made an assertion of mistaken belief, whereas s 80D is not similarly qualified.

37. The respondent sought to overcome this apparent difficulty by reference to the Explanatory Statement, Evidence (Miscellaneous Provisions) Bill 2003 (ACT), which introduced s 73 (later renumbered as s 80D). The Explanatory Statement said (at 7):

New section 73 provides for a direction where an accused raises mistaken belief as to consent. The jury may consider whether it was reasonable in the circumstances for the accused to hold the belief there was consent. The direction may arise where the accused raises mistaken belief as a defence or is cross-examined as to what action he or she took to ensure there was free agreement.

38. This statement suggests that s 80D was intended to operate in the same way as the Victorian legislation. However, the Court must proceed on the basis of the provision as enacted, which differs substantially from the Victorian legislation.

39. One wonders whether, read according to its terms, s 80D serves any useful purpose. It is a statement of the obvious. Absent the provision, in an appropriate case, a trial judge may direct the jury that, in deciding the accused’s subjective belief, they may consider what a reasonable person would believe in the circumstances. Alternatively, the jury may simply apply their common sense and test the accused’s asserted belief against what a reasonable person would believe in the circumstances.

40. It is worth noting that in Director of Public Prosecutions (NT) v WJI [2004] HCA 47; 219 CLR 43, Gummow and Heydon JJ referred to the history of provisions such as s 80D: at [51]–[52]. Legislation arose in the UK in light of the decision in Director of Public Prosecutions v Morgan [1976] AC 182. Section 1 of the Sexual Offences (Amendment) Act 1976 (UK) was promulgated. The legislation was to the effect that the presence or absence of reasonable grounds for a belief that the other party consented was a matter to which the jury is to have regard in considering whether the accused is to be believed. Reference was made in the High Court judgment to the necessity or otherwise for such a statutory provision. The High Court highlighted the discussion in J.C. Smith and Brian Hogan, Criminal Law (LexisNexis UK, 10th ed, 2002) at 467, where it was emphasised that it was unfortunate that a matter of common sense should be enacted at all:

Whenever a jury has to decide whether a person knew a fact or foresaw a consequence, the fact that a reasonable man would have known the fact or foreseen the consequence is evidence tending to show that the accused knew or foresaw; but the decision must be made in the light of the whole of the evidence, including the accused’s own testimony, if he gives it, that he did not know or foresee as the case may be. It is unfortunate that a matter of common sense should be enacted at all, particularly that is should be enacted in relation to one offence.

41. In Stevens v The Queen [2018] ACTCA 7, the trial judge had directed the jury that it should consider the possibility that there had been a reasonable mistake of fact as to the complainant’s consent and that they “had to” (as opposed to “may”) consider the reasonableness of the belief in the circumstances and disregard any unreasonable belief. The Court of Appeal (Bromwich J, with whom Murrell CJ and Burns J agreed) described the wording of the direction as “perhaps unfortunate” but noted that the appellant’s trial counsel had accepted that a belief had to be reasonable in the circumstances and had taken no issue with the directions: at [11]. The Court observed that, having regard to the way in which the trial had been conducted, it was unsurprising that the appellant’s counsel had taken the view that only a reasonable belief was one that would find favour with the jury. Bromwich J said (at [20]):

It follows that although the strict terms of s 73 may have been departed from, they were not departed from in a way that was abstracted from the reality of the trial and no injustices been occasioned.

42. In the circumstances of this case, a similar misdirection was more than “unfortunate”. This was a “relevant case”. In the police interview, the appellant asserted that he had believed that the complainant had been awake and had consented to the intercourse. This made his subjective belief—whether mistaken or otherwise—a “fact in issue” in the trial and meant that s 80D applied.

43. Unfortunately, experienced counsel led the trial judge into giving a direction under s 80D that was fundamentally erroneous because it suggested that a mistaken belief was only relevant if it was objectively reasonable. It is possible that the jury’s verdict depended on that error.

44. We uphold the appeal on this ground.

Ground 2: Direction concerning failure to give evidence

45. The trial judge directed the jury in relation to the need to assess the reliability of the witnesses. His Honour said:

You have heard submissions by the parties about the reliability of the evidence of the complainant and of the accused. Generally, I won’t repeat those competing submissions…

46. Later, his Honour continued:

In this case the accused did not give evidence. He was not obliged to do so. The onus is at all times upon the Crown to prove the charge beyond reasonable doubt … In order for the prosecution to establish the charge beyond reasonable doubt, you will need to accept beyond reasonable doubt the accuracy of the [complainant’s evidence] and as a consequence it’s important that you consider it carefully. Clearly, there is a significant conflict in the evidence between that given by the complainant and what the accused said in his police interview. The difference that you should be aware of is that the complainant gave evidence on affirmation that what she told the police was true and was available for cross examination. The evidence in the police interview by the accused was not given on oath or affirmation and he did not give evidence in court. The important point to note is that even if you prefer the evidence of the prosecution, you should not convict the accused unless you are satisfied beyond reasonable doubt of the truth of that evidence. Even if you do not positively believe the evidence for the defence, you cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt on that issue.

47. In Azzopardi v The Queen [2001] HCA 25; 205 CLR 50, the majority stated (at [51]):

… if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, and may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

48. There are many cases that establish that no particular form of words needs to be used. However, the critical point must be made: the jury must be warned against drawing any adverse inference from an accused person’s failure to give evidence. It is not enough to inform the jury that an accused person is not obliged to give evidence because the onus is on the prosecution. A trial judge must go on to say that nothing can be made of the decision; it cannot in any way be used to prop up the prosecution case.

49. The directions given by the trial judge were flawed in that the trial judge did not inform the jury that they could draw no adverse inference from the fact that the appellant had elected that he would not give evidence in court and make himself available for cross-examination. The error was compounded by two matters. First, the form of the directions contrasted the strength of sworn evidence and the relative weakness of unsworn assertions to the police. Second, in the context of another direction—that lies could found an inference of a guilty mind—the jury may have thought that it could draw an adverse inference from the appellant’s decision that he would not give evidence.

50. We uphold the appeal on this ground.

51. The appeal should be allowed and the appellant should be retried.

Appeal concerning transferred charge

52. In addition to the single count on the indictment that was the subject of this appeal, a related charge was transferred to the Supreme Court, purportedly pursuant to s 90B of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). This was a charge of administering a declared substance contrary to s 37(1) of the Medicines, Poisons, and Therapeutic Goods Act 1933 (ACT).

53. This charge was dealt with by the trial judge after the verdict had been returned on the charge on the indictment: Kirby v MZ [2019] ACTSC 327. The trial judge found the appellant guilty.

54. Prior to this Court hearing the appeal concerning the conviction for sexual intercourse without consent, the appellant had not lodged an appeal against the conviction on the related charge. Consequently, at the hearing of the principal appeal, the Court requested additional submissions on any issues that may arise in relation to the related charge, if the principal appeal were to be allowed and re-trial ordered.

Procedure for related charges

55. Under s 88B(2)(b) if, on the application of an accused and with the prosecutor’s consent, the Magistrates Court waives committal proceedings and commits the accused for trial, the Magistrates Court must also transfer any related charge to the Supreme Court to be dealt with under pt 8 of the Supreme Court Act. Under s 90A(7) of the Magistrates Court Act, where a person has pleaded guilty to a relevant offence, they are to be committed to the Supreme Court for sentence and, under s 90B, any related offence must also be transferred to the Supreme Court to be dealt with under pt 8 of the Supreme Court Act. In other words, regardless of whether the relevant indictable offence/s are committed to the Supreme Court for trial or sentence, any related offence must also be transferred to be dealt with under pt 8 of the Supreme Court Act.

56. Relevantly, pt 8 of the Supreme Court Act provides:

68CA Definitions––pt 8 … related offence, in relation to an indictable offence (the first indictable offence) means an offence, other than a backup offence – (a) that is – … (ii) an indictable offence that is capable of being dealt with summarily by the Magistrates Court…; and (b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen. 68D Back-up and related offences (1) This section applies in the following circumstances: (a) if the Magistrates Court commits an accused person for trial or sentencing to the Supreme Court under any of the following provisions of the Magistrates Court Act 1930: (i) section 88B (Court may waive committal proceedings); (ii) section 90A (7) (Plea of guilty at committal hearing); … (b) at the conclusion of the trial of an accused person for an indictable offence, or in the course of a sentencing proceeding. (2) The court must deal with any … related offence with which the accused person has been charged if the court considers that it is in the interests of justice. … 68E Procedure (1) The court shall deal with a … related offence under this part— (a) without a jury; and (b) on the basis only— (i) of evidence given during the trial of the accused person for any indictable offence in the same proceedings; and (ii) of any additional evidence given under this section. … (3) In sentencing or otherwise dealing with a person for a back-up or related offence, the court has the same functions as the Magistrates Court.

57. When dealing with the transfer charge the Supreme Court acts as if it was, and exercises the same functions as, the Magistrates Court: R v Aleer [2016] ACTSC 75 at [100].

58. In this case, the trial judge dealt with the related offence on the evidence admitted in the trial in accordance with s 68E; neither the prosecution nor the appellant had sought leave to adduce further evidence. His Honour made various findings on the evidence, concluding that the offence had been made out beyond a reasonable doubt.

59. The proceedings in which the appellant was convicted of the transfer charge were related to but separate from the proceedings on indictment. Consequently, the appeal against conviction on the indictable charge did not invoke the jurisdiction of the Court of Appeal pursuant to s 37O of the Supreme Court Act; its jurisdiction was invoked only “in relation to the order appealed from”. Accordingly, the Court had no power to make any orders under s 37O in relation to the transfer charge

60. When this deficiency became apparent, the appellant filed an application for leave to appeal out of time against the conviction on the transferred charge. The respondent accepted that leave should be granted.

61. The appeal was brought on two bases. First, that the transferred charge had been wrongly transferred to the Supreme Court pursuant to s 90B of the Magistrates Court Act and, consequently, the Supreme Court lacked jurisdiction to deal with the charge. Further and in the alternative, that, if the Court upheld the substantive appeal on the basis that there had been a miscarriage of justice and ordered a new trial the conviction on the transfer charge should also be set aside.

62. As the respondent consented and the proposed appeal raises an issue of miscarriage of justice, we will grant leave to appeal out of time.

Ground 1 concerning transferred charge: jurisdiction

63. The appellant submitted that s 90B only applies where an accused person has been committed for trial under s 90A(7) following a plea of guilty to an indictable offence, i.e. where a person has been committed for sentence. The appellant cited R v Loulanting [2015] ACTSC 172 at [16]-[20]. Consequently, any purported transfer under s 90B was invalid. In the absence of a valid transfer, the Supreme Court has no jurisdiction to deal with summary offences. The appellant cited Refshauge J in R v McMahon (No 2) [2017] ACTSC 29 (McMahon (No 2)) where his Honour stated (at [17]):

[T]he issue is one of jurisdiction and courts should be vigilant to ensure that they have the jurisdiction that they seek to exercise. As Isaacs J explained in Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 at 446, “[t]he very first duty of any Court, in approaching a cause before it, is to consider its jurisdiction”. The appellant contended that, for this reason, the conviction should be set aside and the charge should be remitted to the Magistrates Court.

64. The transfer of the charge was not invalid because, although the charge could not have been transferred by the Magistrates Court pursuant to s 90B of the Magistrates Court Act, the Magistrates Court had jurisdiction to transfer the charge under s 88B(2)(b), and had been obliged to do so. Section 88B(2)(b) provides that, in the circumstances of the present case, the Magistrates Court “must” transfer any charge for a related offence.

65. In Hei Hei v R; R v Hei Hei [2009] NSWCCA 87, the NSW Court of Criminal Appeal stated that where available jurisdiction is exercised under the incorrect provision that does not necessarily invalidate the exercise of jurisdiction (at [52]):

An exercise of jurisdiction, otherwise available, under the wrong provision does not necessarily render the exercise invalid: see R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164. Invalidity would depend on the tests to be used in each exercise of jurisdiction.

66. Further, in R v Moore; Ex parte Graham (1977) 138 CLR 164, Gibb J stated (at 173):

Prohibition will not lie to the Commission if, acting within jurisdiction, it makes awards which it had power to make, simply because it thought that its power was conferred by one section whereas in truth it was given by another.

67. Similarly, in Innes v NSW Senior Deputy State Coroner; Commissioner of Police v NSW Senior Deputy State Coroner [2007] NSWSC 1209, Rothman J stated (at [12]):

[T]he nomination of an incorrect source of power for an act does not invalidate the act, if another source of power is available and that source of power does not alter the task to be undertaken or the consequences of its exercise: VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; R v Graham; ex parte Moore (1977) 138 CLR 164.

68. The present case is clearly distinguishable from McMahon (No 2). In that case, the Supreme Court had no jurisdiction to deal with the transferred charges as they were not related offences within the meaning of s 68CA of the Supreme Court Act. In contrast, the transferred charge in the present case was a related offence and the Magistrates Court had jurisdiction to transfer the charge.

69. The Magistrate Court’s purported reliance on s 90B rather than s 88B of the Magistrates Court Act did not alter the task that had to be undertaken, and the transfer was valid.

Ground 2 considering transferred charge—should the conviction be set aside because the Court allowed the appeal on the principal charge?

70. Section 68E of the Supreme Court Act contemplates that the judge alone trial of a transferred offence will occur after the jury has delivered its verdict/s in relation to the principal offence/s and on the basis of the evidence given before the jury (and such additional evidence as may be allowed).

71. In Thompson v The Queen (No 2) [2016] ACTCA 47, the Court of Appeal allowed an appeal against convictions for indictable offences on the basis that the trial judge had failed to administer an appropriate warning to the jury. Refshauge J granted leave to appeal against convictions on transferred offences and allowed the appeal because the Crown consented to an order that the appeal be allowed. It would appear that, inter alia, the Crown’s consent was informed by the facts that the evidence in the retrial may differ from that in the first trial and the failure to warn had a bearing on the jury’s assessment of the complainants credibility.

72. We have decided that the conviction on the transfer charge should be set aside for two reasons.

73. First, the evidence that it is given in the retrial may differ from that given in the first trial and s 68E requires the judge determining the related charge to consider only the evidence given during the relevant trial.

74. Second, in dealing with a related charge, not only is the trial judge obliged to proceed on the basis of the evidence given during the trial of the principal charge; the judge is also obliged to proceed in a manner that is consistent with the jury’s assessment of the evidence. Relevantly in this case, his Honour had to proceed on the basis that the jury had accepted the critical parts of the complainant’s evidence beyond reasonable doubt.

75. On the principal appeal, we have decided that, in convicting the appellant (and accepting the critical aspects of her evidence beyond reasonable doubt), the jury may have acted on an erroneous basis; jurors may have thought that they could draw an adverse inference from the appellant’s decision that he would not give evidence. Consequently, it is possible that, on the retrial, the new jury will not accept critical aspects of the complainant’s evidence beyond reasonable doubt. If so, the trial judge’s decision on the related charge will be inconsistent with that of the new jury.

Orders

76. The orders we make are:

(a) Leave is granted under r 5531 of the Court Procedures Rules 2006 (ACT).

(b) Leave is granted to appeal the conviction on the related charge (CC2018/12827). (c) The appeal against the appellant’s conviction on Count 1 (CC2018/10449) of the indictment dated 14 March 2019 is upheld and the conviction set aside.

(d) The appeal against the appellant’s conviction on the related charge (CC2018/12827) is upheld and the conviction set aside.

(e) The finding of guilt made by the Court on 3 December 2019 in relation to the related charge (CC2018/12827) is set aside.

(f) A new trial is ordered on Count 1 of the indictment dated 14 March 2019.

(g) The related charge (CC2018/12827) is to await the outcome of the new trial.

(h) The matter is listed before the Registrar for the purpose of allocating a new trial date.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Loukas-Karlsson

Associate:

Date: 20 January 2022